Bit of an epic, I'm afraid, but bureaucrats have the turning circles of oil tankers, so things do get dragged out.
Cheers
Brian
Overturning a Ban on Drinking In Public
Introduction
For Killjoys to succeed ….
… all it takes is for the rest of us to do nothing.
When, in late summer 2007, St Albans Council told the licensees of my local that their customers were no longer allowed to stand outside their pub drinking beer because “The White Swan is in an alcohol-free zone”, I could have done nothing. I could have assumed what they said was true and sat inside supping my pint or moved to a pub with a beer garden.
But – I presume similar to most of the people associated with The Manifesto Club – the thought of some bureaucratic suit decreeing where I was allowed to drink touched a nerve and I decided to act (especially as the licensees, fearful of some future retribution by the Licensing Department, felt unable to complain).
The following is my experiences of dealing with unimaginative, joyless and obtuse members of the local Council and Constabulary.
It has a happy ending – of sorts – and I submit my experiences in the hope that they may help one or more of you in your continued fight against all that is grey.
Kind regards
Brian Parker
1. Background
The wilful misinterpretation of the law
Like many places St Albans used to have a byelaw banning the consumption of alcohol in public across the whole of the City Centre. But then along came the Criminal Justice and Police Act 2001 and everything changed. Or at least it should have.
As most of you will know this legislation was enacted to combat crime and disorder and, within its second chapter, specifically included provisions “for combating alcohol-related disorder”. The Act enshrined our right to consume alcohol in public and gave notice to local authorities that any byelaws that banned public drinking would cease in 2006.
In order to combat anti-social behaviour associated with the consumption of alcohol (and let’s face it, it does exist), the Act allowed Councils to establish Designated Public Places (DPPs). In a DPP the consumption of alcohol was still allowed but people misbehaving could be asked to cease or move on and only if they refused without providing a reasonable excuse would they be committing an offence - at which point their alcohol could be confiscated and they could be fined or arrested.
All very laudable you would think. But not good enough for the busy-bodies in our Council Chambers and the killjoys to whom they listen.
Despite the fact that DPPs were supposed to be small, carefully targeted zones with a clear history of trouble, deployed only after widespread consultation, the Council decided simply to re-designate the whole of the existing No Alcohol Zone as a DPP. In their words: “Full consultation had taken place at the time of the introduction of the original byelaw and the Council was therefore not required to undertake a full consultation this time”.
In a single paragraph, taken from the Council meeting at which the introduction of the DPP was resolved, the Council acknowledged that the legislation was “to prevent anti-social drinking” and then adopted a sign “to indicate as clearly as possible where people were entering a no alcohol zone”!
The sign St Albans Council adopted is one you might see in your city centre: it has a glass, a bottle and a can in a red circle with a red line through it: Home Office Guidance reads: “We suggest avoiding the use of diagonal lines through bottles or glasses as they may suggest some sort of prohibition or ban on alcohol itself”.
The Council then published a map in the local press showing the extent of the DPP but called it an “Alcohol Exclusion Zone”. Home Office Guidance reads: “DPPs are sometimes misleadingly referred to as Alcohol Free Zones, Drinking Control Areas and Drinking/Alcohol Ban Areas … this can be confusing to members of the public”. And surely this is the point: the Council was happy with its Alcohol Free Zone and were so determined not to lose it that it wilfully misinterpreted both the law and Home Office advice.
The net result was that members of the Council’s Licensing Team and the local Constabulary were encouraged to enforce an Alcohol Free Zone and people assumed such enforcement must be perfectly legitimate. It wasn’t.
Having taken an inch the Council then wanted to take a mile…..
2. The tipping point
Lies, damned lies and even more flippin’ lies
So, as far as the Council was concerned nothing had changed. Its Alcohol Free Zone was now a DPP, but for all intents and purposes this would be enforced in exactly the same way.
And as far as I was concerned nothing had changed either: I happily remained sat at the bar of my local and the Council’s actions slipped beneath my radar. But then came the smoking ban. I’ve never smoked but many of those I drink with do. With no beer garden at The White Swan, if they wanted a fag they’d simply walk outside onto the street. And occasionally I’d join them and take my pint with me. As none of us were being anti-social there shouldn’t have been a problem, but with the words “alcohol free zone” being bandied about by the great and the good, a problem soon arose.
In August 2007 a Senior Licensing Officer from the Council visited The White Swan (and three other City Centre pubs), and explained that the existence of a DPP meant that no alcohol was to be consumed outside the pub and neither should soft drinks in case passers-by mistook them for alcoholic drinks! The Officer followed this up with a letter in September 2007 in which he wrote that the DPP order “effectively means that alcohol should not be consumed” outside. The licensees remain adamant that the Officer also made it clear that if they didn’t “actively discourage” outside drinking then it could impact on them and their licence (a threat the licensees of the other pubs affected confirmed they, too, had received).
Fearful of the repercussions of taking on the Licensing Department and also assuming that the Officer was correct, the licensees reluctantly put up a poster telling people of the ban on drinking alcohol in public.
This just felt wrong. So I took note of what was said on the DPP street sign, found the Criminal Justice and Police Act on the web and began researching Hansard, Home Office advice and Council minutes. All of which pointed to a deliberate attempt by the Licensing Department to ignore what the law said, what the Government advised and what had been promised to more laid-back Councillors in the limited piece of internal consultation that had taken place.
I therefore decided to take up arms on behalf of the pubs – making it very clear to the Council that this was my complaint and not theirs.
3. My Complaints
Patience and persistence
I wrote to anyone who would listen – and very many who wouldn’t. I hope my experiences may provide some ideas of what to do (or what not to), if you’re looking to tackle a similar issue in your home town or city.
The House of Lords
I wrote to Lord Bassom of Brighton who spoke on behalf of the Government in the second reading of the CJ&P bill on 2nd April 2001. In the Lords he said that people “would not be committing an offence simply by drinking … in a designated area” and that whilst the police will have discretion “what they are looking for is anti-social drinking in places where they reasonably believe that public disorder may occur.” I asked Lord Bassom for his view on the Council’s actions and he simply couldn’t be bothered to reply.
Lesson: not everyone is going to share your passion about righting an obvious wrong.
Local Councillors
I tracked down a Councillor who was present when the DPP was being discussed and asked for her views. She turned out to be very supportive. Whilst uncertain about the CJ&P Act and what a DPP was, she was clear that she had been assured during consultation that there would be no ban on drinking outside pubs and cafes. She continued to offer support and advice throughout my complaint.
Lesson: not every Councillor will agree with what the Council is doing and might be happy to support your campaign (whilst painting their political opponents as illiberal/boring/nanny-state etc.)
MP
I wrote to my local MP. She didn’t understand my letter so I had to write it again with more simple vocabulary. She didn’t want to get involved and suggested I write to the local Constabulary.
Lesson: MPs have to respond to genuine constituents, so if there’s a few of you bombard him/her, you might get more or a reaction than I did.
CAMRA
I asked the Campaign for Real Ale to help and they came up trumps, raising exactly the same issues with exactly the same people I was complaining to in the Licensing Department to hopefully get the message through. They also highlighted the issue in a local newsletter.
Lesson: get help where you can – there’ll be plenty of people out there who share your views
The Home Office
I wrote to them asking for clarity. And they provided none. Their replies were contradictory and illogical. In the course of our correspondence, however, they confirmed that they had been advised by St Albans Council that the Council and local Constabulary had agreed to a ‘protocol’ whereby alcohol-free zones were established outside a number of city centre pubs (more of this later).
Lesson: keep note of any replies as the arrogance of people in positions of power can often prove to be their undoing.
Herts Constabulary
I wrote to and spoke with the Licensing Officer. It was soul-destroying. The impression I developed was that this was his patch and he was going to enforce it his way. I asked him many times to try and provide examples of what he would consider to be “anti-social behaviour” and what he would consider to be a “reasonable excuse” to refuse a request to cease drinking (remember this is a right enshrined in the CJ&P Act), he flatly refused. His thinking went along the lines of “I know the law says you’re allowed to drink alcohol in public, but I have the discretion to decide what is and isn’t anti-social and if I ever see you drinking in public I will consider it to be anti-social and insist that you cease”. I suggested that this was in effect enforcing a no alcohol zone and he said it wasn’t as the law wouldn’t allow that, it was simply him using his discretion to stop anyone he saw drinking alcohol in public! Like I said, soul-destroying.
This Officer denied knowledge of any ‘protocol’ agreed with the Council that effectively banned drinking alcohol in public – that’s the protocol that the Home Office, following advice from St Albans Council, told me did exist!
Following on from my MP’s recommendation I then wrote to the local Chief Inspector who put me in touch with her Inspector.
The Inspector, fortunately, was a completely different animal from the Licensing Officer. He understood the implications of the Constabulary being accused of misinterpreting the Act and eventually wrote confirming that a protocol to create alcohol-free zones “would …be unlawful” and that the Constabulary had never agreed to any such policy with the Council.
Lesson: don’t give up! I now carry a copy of the Inspector’s letter in my wallet.
The Council
As it was the Council that implemented the DPP, I simultaneously wrote to the Council whilst corresponding with the Police.
I wrote to the Senior Licensing Officer who had intimidated the licensees of my local asking why the Council was creating no alcohol zones outside four pubs when the CJ&P Act didn’t allow it and when the legislation was designed to target anti-social behaviour. He stated that the Council was enforcing the DPP order because complaints had been received from local residents who stated they had found the situation intimidating when passing The White Swan especially if accompanied by children. That is why, he explained, the Licensing department and Constabulary had agreed to take the action they did (the mysterious ‘protocol’).
I suspected that amongst the alleged complainants was a local group called Save Our Sleep who complain long and hard (as is there right) against anything any pub, bar or restaurant in the City centre wants to do. I therefore wrote back to the Officer asking him to confirm how many complaints were received and whether they were from members of the public or local campaigning groups. On the basis that I was almost certainly one of the drinkers outside the pub when alleged intimidation had occurred, I also enquired as to what efforts had been made by the Council or police to ask me to amend my anti-social behaviour or to give me the chance to challenge the allegation.
He replied – amongst other points - that four complaints had been received all from members of the public, and that the policy of both the Council and the Constabulary was that as soon as someone says he or she feels intimidated by a third party’s actions then that third party is guilty of anti-social behaviour! Having now read up on the CJ&P Act he then agreed that it would be unlawful for any action to be taken to bring about a ban on public drinking, but then bizarrely explained that the bans on public drinking the Council was enforcing were justified because complaints had been received.
As he was still digging I decided to lend him another spade and wrote once more, this time including a Freedom of Information request. Amongst other elements I sought copies of the complaints (with the complainants names redacted) and minutes of the meeting in which the Council and Constabulary agreed the policy of alcohol free zones outside the pubs in question (remember this is the protocol that the Inspector said the Constabulary had never agreed to because it would be unlawful). The Council is a public organisation and therefore subject to the FoI legislation: as I (and others I drink with) had, in effect, been accused, tried and found guilty of intimidation - including of children – I was within my rights to demand such information … perhaps you may be in a position to do the same.
When the FoI documents came through the four complaints had miraculously turned into three. One of these was an enquiry, not a complaint, about a pub outside the City centre so the three became two. One of these was received after the Officer had imposed the alcohol free zones on the pubs, so the two became one. And this one? Well, the Officer made a very poor job of redacting an ongoing complaint by email (which I’ll return to), and I could read the complainant’s name: he was the co-chair of Save Our Sleep! So, not a single complaint from a member of the public instead a complaint from a local campaigning group despite the Officer’s written assurance that this had not been the case.
The minutes from the meeting between the Council and the Police were useless and a precursor to the recent House of Commons redaction policy with huge swathes of black ink.
Returning to the poorly-redacted correspondence from Save Our Sleep which I was provided with under FoI, this was conducted between SOS, the Council’s Principal Licensing Officer (the Senior Licensing Officer’s boss), and the Licensing Officer of Herts Constabulary with whom I’d endured such tortuous conversations. The three were on first name terms and asked about the well-being of each other’s families: all very cosy.
The correspondence revealed just how complicit the Council and the Constabulary were in enforcing an alcohol-free zone despite their public denials. Amongst other gems, the Police Officer wrote: “as soon as patrons are on the Public Highway then they are in the no alcohol zone … (and) could be breaching the no alcohol zone”.
In one email the SOS co-chair wrote about hearing “blokeish language” from people outside my local. He alleged this was on “a busy Saturday and there is a reasonable footfall past The White Swan … many of which are families with children”. Remember the Senior Licensing Officer’s justification for the alcohol-free zones? Because complaints had been received from passers-by with children who had felt intimidated! And yet here in black and white was the truth of the “complaint”: a busy-body making an assumption that some parents with children might feel intimidated by blokeish language!
Furious by the lies I had been subjected to I made an official complaint to the Council’s Corporate Complaints Monitoring Officer, the summary of which was:
• That the Council created alcohol-free zones in contravention of the 2001 CJ& P Act
• That such a policy was – in the words of the local Police Inspector – “unlawful”
• That the justification for creating the alcohol-free zones was disingenuous
• That subsequent explanations for the creation of alcohol-free zones (i.e complaints of intimidation) were unsubstantiated
• That I was deprived of my right to pursue a lawful activity and that third parties were forced into policing this “unlawful” policy.
A Department Head considered my Complaint at what was called Stage 2. This can be summarised as:
• The CJ&P Act does not require any nuisance, annoyance or disorder to take place before one’s alcohol can be confiscated.
• That the licensees had misinterpreted the Senior Licensing Officer’s advice and letter.
• That action had to be taken because of the complaints that had been received.
• That he was not aware of any ‘protocol’ between the Council and Constabulary having been “written down” but that the Council does need to be more specific about its contents.
• That the Council had not created an alcohol-free zone, but could understand why I might be confused.
• That the DPP signs had been agreed by the relevant government department.
• That the Senior Licensing officer had not acted improperly.
• That the Council had done nothing wrong.
I was even more furious, challenged his conclusions one-by-one and demanded the Complaint moved to Stage 3.
Your Council may do things differently but in St Albans they farm out Stage 3 complaints to an outside Consultant called Complaints-R-Great Limited. No, seriously. I met the consultant and provided him with copies of all correspondence. He seemed gobsmacked by the way the Council had behaved. But then his findings, which came back via the Council’s Chief Executive, told a different story, summarised as:
• Lots of other Councils are misinterpreting the CJ&P Act worse than we are
• The Senior Licensing Officer’s letter and advice could have been misinterpreted – he didn’t mean licensees should stop people drinking in public, honest, and the Council didn’t create any alcohol-free zones
• We’re going to produce a new leaflet
• The Licensing Team dealt properly with the four (sic) complaints
• We’re thinking about issuing pavement licenses
The Chief Executive also said I had the right to complain to the Local Government Ombusdman about his claim that the Council had done nothing wrong. I did.
And the LGO …. found in my favour! It saw through the Council’s revisionist rhetoric and recognised that it had set out to and then succeeded in establishing alcohol free zones in the City Centre when it should not have:
“I confirm that I did not accept the Council’s view that it had not been at fault and instead I found fault because its initial advice, and its subsequent actions in the light of this advice, was wrong. It incorrectly stated that there was a ban on the consumption of alcohol when this was not the case.”
Lessons:
• try to divide and conquer – asking the same questions of your local Council and Constabulary may produce contradictory evidence
• assert your rights – in my case it was to challenge allegations of anti-social behaviour made against me. In other cases it may be to offer a “reasonable excuse” to a Police Officer requesting you cease drinking (make contemporaneous notes)
• use their rules against them – get to know their processes and be prepared to be a pain in the proverbial
• use the Freedom of Information Act (whilst we still have it?) – find out exactly what the Council and/or Constabulary are discussing: if their minutes/correspondence talk about ‘alcohol free zones’ challenge them or report them to the Home Office; if there are complaints against you, ask to see them and challenge them (In my letter to the LGO I quoted a separate LGO decision against Manchester City Council. MCC issued an antisocial behaviour order on a resident without interviewing her or gathering corroborative evidence. The LGO considered this “an abuse of power” and described as “extraordinary” that the allegations were never put to the woman before the Council took action against her. (27th June 2007, Ref: 06/B1231))
• get help where you can – find a Councillor who wants to get in the local paper and get them on board promoting ‘responsible sociable drinking in public’
• be persistent – don’t let the Council/Police bullies get you down
4. Success
But no apologies
So, thanks to the Local Government Ombudsman decision it was clearly established that the Council had acted improperly in creating bans on drinking in public.
With the local press having covered the story on its front page under the headline “Booze ban is a scam”, the Council looked stupid and the licensees of all four pubs advise me they’ve never had a visit from the Senior Licensing Officer since.
The Chief Executive of the Council was obliged to write to the Councillor who had helped me confirming that it is not lawful to impose an alcohol-free zone … and blamed the Police for implying it could be! (Divide and conquer!)
The Licensing Officer from the Police moved into denial mode and kept an equally low profile.
But not a single proper apology.
Still, once again, we we’re drinking in the streets of St Albans with no fear of police interference unless genuine anti-social behaviour warranted it.
Happy days … but would they last?
5. Postscript
You can’t keep a good Killjoy down
The LGO decision came in May 2008. As soon as it was published a Councillor who had supported the alcohol-free zone policy immediately started on a new tack: that the licensees were not allowed to sell alcohol for consumption off the premises and that this is why the pub customer should not be drinking in public (happily ignoring the fact that I could buy a can of beer from Tesco round the corner and stand outside The White Swan drinking it).
I showed to him copies of the pubs’ licenses which all stated that the licensees could sell alcohol for consumption on and off the premises. The Councillor and the Council’s Solicitor then declared that alcohol to be consumed off the premises had to be in sealed containers, so I couldn’t just stroll outside with my pint glass in hand. I asked them to provide support for this argument and was told that this was a widely acknowledged tradition, an unwritten rule that I should simply accept. I laughed and challenged them to come and try to enforce an unwritten rule against an Act of Parliament … they declined. And the drinking continued at tables and chairs outside the pubs. Until …..
The Licensing Department then decided that the owners of tables and chairs outside all City Centre premises including cafes, delis and pubs would soon have to apply for a Pavement Licence. With the criteria so demanding and the decision of the Licensing Department final, a back-door ban on drinking in public was suspected. I kicked up a fuss with the help of the same pro-common sense Councillor and the Licensing Team were forced into holding a public forum to discuss the issue.
The Licensing Teams argued they had to implement a Pavement Licensing system now – despite the fact that some premises had has a presence on the highway for decades - because of complaints from the Disability Forum. Guess what … when I checked with the Disability Forum they knew nothing about it: in fact they said they were very supportive of the café culture and that it would be a shame to lose the tables and chairs outside these pubs.
The deadline for paying for an application for a Pavement Licence (with its non-refundable fee!), was 1st May 2009. None of the four pubs and not a single café I have talked to have bothered applying. No action has been taken against the owners of these “illegal” tables and chairs.
Finally, in researching the Pavement Licence, I had to speak with the Constabulary’s Licensing Officer once again. We met outside The White Swan with one of the licensees and the Officer basically said: I don’t know why the Council are offering the chance for you to have this licence because if I see anyone drinking in public I’ll consider it to be anti-social and will make them stop! A quick letter to his Inspector received a very sharp response: “I regret that the PC may have led you to believe that all drinking in public is anti social. I have spoken to him and asked him to write to you personally to clarify matters”.
His last line: “I can reassure you categorically that you would not be arrested merely for drinking alcohol in a public place”.
We’re getting there.
Good luck in your town or city.
